Craven v. Midland Milling Co.

• Citation: 228 S.W. 513
• Decision Date: 07 March 1921
• Docket Number: No. 13880.,13880.
• Parties: CRAVEN v. MIDLAND MILLING CO.
• Court: Court of Appeal of Missouri (US)

228 S.W. 513

CRAVEN v. MIDLAND MILLING CO.

No. 13880.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Appeal from Jackson Circuit Court; C. A. Burney, Judge.

"Not to be officially published."

Action by Carrie Craven against the Midland Milling Company. Plaintiff having taken an involuntary nonsuit and her motion to set the same aside having been denied, she appeals. Appeal dismissed.

Elon Levis and Atwood, Wickersham, Hill & Popham, all of Kansas City, for appellant.

Rosenberger & Reed, of Kansas City, Warren L. White, of Springfield, and Rollin E. Talbert, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. At the end of all the testimony the court marked "given" defendant's instruction in the nature of a demurrer to the evidence; plaintiff thereupon took an involuntary nonsuit with leave, and upon the court's refusal to set the same aside and grant plaintiff a new trial, plaintiff appealed.

We learn from the abstract filed here by appellant that plaintiff, an employee of defendant, was injured by slipping upon and falling from a metal door on a "roll machine" in a flourmill owned and operated by defendant. Her duties were the oiling and cleaning of machinery. The fourth floor was a large open room containing "roll machines" or "big stands" which had long pipes attached and such apparatus as was necessary to conduct the flour and milling material. These "roll machines" were substantially box shaped at the base, more rolling at the top, about 6 feet or more high and inclosed. There were about 28 of them on the fourth floor. The "roll machine" in question had a metal door on the front side 5 inches wide and 13 inches long and situated about 3 feet above the floor. When closed the door was substantially vertical; when open or let down it was horizontal. A few inches above the door the roll machines "bulged out" about 3 or 4 inches and then slanted back.

On the day of her injury plaintiff was directed by her foreman to get a ladder and clean the overhead pipes and to fill the oil cups. She informed the foreman that she could not find a ladder, and he told her to let down the door on the "roll machine" and stand upon it, and assured plaintiff that it was safe for her to so stand. Plaintiff, relying upon the assurance of the foreman, got upon the door, made a stroke with her broom slipped, and fell upon the concrete floor, her car striking a hot radiator.

The petition alleges that defendant failed to furnish plaintiff with a reasonably safe place in which to work, and negligently failed to furnish plaintiff with a ladder or other reasonably safe appliances, and that its foreman negligently ordered and directed plaintiff to go and stand upon the door. The answer consists of a general denial and pleas of contributory negligence and assumption of risk.

Respondent has filed a motion to dismiss the appeal on the ground that appellant's abstract of the record fails to set forth so much of the record "as is necessary to a full understanding of all the questions presented to this court for decision," as required by rule 15 of this court. The abstract as filed here by appellant states that it contains all the evidence introduced in the case. It appears from respondent's additional abstract of the record that a great amount of testimony has been omitted from appellant's abstract. Appellant's abstract contains 44 pages of printed testimony, while the bill of exceptions contains 209 pages of evidence. Thirty-one pages of plaintiff's testimony has been omitted from appellant's abstract of the record; this consists mostly of cross-examination, but partly of redirect examination. Thirty-six other pages, which consists of plaintiff's deposition taken before the trial, has been omitted. Two photographs of the "roll machine" from which plaintiff fell have been omitted. There are no photographs at all in the record filed here. Three pages of testimony on cross-examination of plaintiff's witness, Popham, have been omitted, and likewise 2 pages of the testimony of her witness, Levis, on cross-examination. The testimony of defendant's witness Stroud, which takes up 6 pages of the bill of exceptions, is condensed to 5 lines of testimony in the abstract, and is set forth in narrative form. The testimony of defendant's witness Merritt consists of 12 pages of the bill of exceptions, but only 7 lines in narrative form in the abstract. The testimony of defendant's witness Morris consists of 5 pages in the bill of exceptions, and only a half of a page in narrative form in the abstract. Three pages in the bill of exceptions of the testimony of defendant's witness Teschorn takes up 7 lines in narrative form in the abstract. The testimony of defendant's witness Gertrude Schroeder takes up 6 pages of the bill of exceptions and only 8 lines in narrative form in the abstract. Three and pages of the testimony of defendant's witness Mitchell, besides several questions and answers, have been omitted from the abstract. Nearly all the testimony of defendant's two medical witnesses has been omitted.

It has long been the rule in this state that an appellate court will not review the rulings of the trial court in sustaining or refusing a demurrer to the evidence, unless the abstract of the record contains all of the evidence. Whitehead v. St. L., I. M. & S. Ry. Co., 176 Mo. 475, 479, 75 S. W. 919; Harrison v. Pounds, 190 Mo. 349, 88 S. W. 713; Vandeventer v. Goss, 190 Mo. 239, 88 S. W. 610; Milling Co. v. Hanebrink, 247 Mo. 212, 152 S. W. 354, Ann. Cas. 1914B, 875; Halstead v. Stone, 147 Mo. 649, 49 S. W. 850; Tatum v. Anderson, 8 Mo. App. 574; Tozer v. Clark, 8 Mo. App. 577; Taussig v. St. L., K. C. & N. Ry. Co., 8 Mo. App. 578; Distilling Co. v. Lock; 59 Mo. App. 637; Jackson v. Wabash Ry. Co., 85 Mo. App. 443; Deering v. Hannah, 93 Mo. App. 618, 67 S. W. 714; Moore v. Harmes, 123 Mo. App. 34, 99 S. W. 764; Goodson v. Wabash, etc., Rd., 23 Mo. App. 76, 82; Gooden v. Modern Woodmen of Amer., 194 Mo. App. 666, 675, 189 S. W. 394. And the practice of setting forth the tendency of the evidence, instead of copying it in lime verba, where the propriety of a demurrer to the evidence is raised, has been expressly condemned. Goodson v. Wabash, supra; Moore v. Hannah, supra; Jackson v. Rd., supra.

It has been held that "where the defendant is willing to stake his defense on the undisputed word of his adversary, and where it is not shown or alleged that there was any other evidence admitted that would vary that given," the rule requiring the evidence to be set forth in hæc verba does not apply. Haggard v. Walker, 132 Mo. App. 463, 111 S. W. 904. Of course, there is no such circumstance present in the case at bar as existed in the case last cited. In the case of Graham v. Ins. Co., 110 Mo. App. 95, 84 S. W. 93, a suit was brought upon an insurance policy. Plaintiff's abstract contained only a part of the policy and application, and only one section of the by-laws. It was apparent that the parts omitted were in no wise connected with the issues involved in the determination of the case. It was held that the court would not dismiss the appeal for failure to comply with the rule. Respondent in the case at bar insists that the parts omitted are essential.

It is claimed by appellant that if her abstract is insufficient for the reasons urged against it, it was the duty of respondent under rule 15 of this court (169 S. W. xiii) to furnish "such further abstract of the record he may deem necessary." In this connection we are also referred to section 1479, It. S. 1919, which provides that —

"Respondent * * * may,...